NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
JUL 26 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
DANIEL BERRY, No. 13-36108
Plaintiff-Appellant, D.C. No. 2:12-cv-01494-MJP
v.
MEMORANDUM*
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, Senior District Judge, Presiding
Argued and Submitted July 8, 2016
Seattle, Washington
Before: TASHIMA and M. SMITH, Circuit Judges and KOBAYASHI,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Leslie E. Kobayashi, District Judge for the U.S.
District Court for the District of Hawaii, sitting by designation.
Plaintiff-Appellant Daniel Berry (“Berry”) appeals the order adopting the
magistrate judge’s report and recommendation to affirm the decision of Defendant-
Appellee Carolyn W. Colvin, Acting Commissioner of Social Security
Administration (“the Commissioner”), to deny social security disability benefits
and supplemental security income benefits.
First, we decline to address Berry’s argument that the administrative law
judge (“ALJ”) erred in failing to give him notice that, in order to prove that he
could not return to his past relevant work, he had to submit written documentation
that he previously held a commercial driver’s license (“CDL”) and that his last
employer required him to have a CDL. We will not reverse an ALJ’s decision
based on a legal error that is harmless. Treichler v. Comm’r of Soc. Sec. Admin.,
775 F.3d 1090, 1099 (9th Cir. 2014). Even assuming, arguendo, that the ALJ
erred in failing to give Berry notice of those requirements, the error was harmless
because the ALJ found at step four that Berry could not return to his past relevant
work as a courier driver – as he previously performed it – because he could not
perform the exertion requirements of the position. See Molina v. Astrue, 674 F.3d
1104, 1110 (9th Cir. 2012) (describing the five-step sequential evaluation to
determine whether a claimant is disabled).
2
Second, the evidence that Berry presented to the Appeals Council – which
the Commissioner has not refuted – suffices to show for purposes of this case that
any person who is taking narcotic pain medication cannot work as a commercial
driver, even if the position does not require a CDL. The ALJ therefore erred in
concluding at step four that Berry could still perform his past relevant work as a
courier driver, as that job was performed in the national economy. However, the
error is harmless because of the ALJ’s alternative step five finding that there were
other jobs which existed in significant numbers in the national economy that Berry
could perform.
Third, the ALJ did not err in adopting the previous findings regarding
Berry’s residual functional capacity (“RFC”) because: 1) the ALJ gave
“persuasive, specific, [and] valid reasons . . . that [were] supported by the record”
for discounting the Veteran’s Administration’s disability determination; see Berry
v. Astrue, 622 F.3d 1228, 1236 (9th Cir. 2010); 2) although this Court’s prior
opinion held that the ALJ on remand may reconsider Berry’s RFC, it did not
require the ALJ to do so; id. at 1234-35; and 3) the relevant legal authority
supports the ALJ’s conclusion that Berry’s inability to pass a drug test would not
preclude him from performing the other jobs that the vocational expert (“VE”)
testified he had the RFC to perform.
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Finally, we decline to consider Berry’s argument – raised for the first time at
oral argument – regarding the sufficiency of the VE’s testimony about the number
of jobs in the national economy that the VE testified were within Berry’s RFC.
See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
AFFIRMED.
4